DAN MORALES 

ATTORNEY GENERAL. 

QBffice of tfy !Zlttornep 

Mate of Qexae 

June 16,1994 

Qkneral 

Honorable John Vance 

Dallas County District Attorney 

Frank Crowley Courts Buildii LB 19 

Dallas, Texas 75207-43 13 

Opiion No. DM-295 

Re: Whaher the district clerk filing fees 

provided for in section 51.317 of the 

Government Code apply to the tiling of an 

application for a preindiCtment writ of habeas 

corpus, and a related question (IQ-6 18) 

Dear Mr. Vance: 

Your letter requesting an opinion asks, “[C]an the appropriate civil tiling fee be 

collected at the. time of filing a pm-indictment Writ of Habeas Corpus?” According to 

your letter, there is contusion among the counties on this question: 

In some smaller counties, the pre&iictment writs of habeas corpus 

filed by attorneys seeking release of their clients from jag while 

awaiting grand jury prooxdings or indictment have been treated as 

civil matters, and the district clerks have been collecting civil thing 

fees. 

These clerks would claim that their authority for charging a tiling fee is found in section 

5 1.3 17 of the Government Code, which provides as follows: 

(a) The district clerk shag collect at the time the suit or action is 

filed the fees provided by Subsection (b) of this section for services 

performed by the clerk. 

(b) The fees are: 

(1) for thing a suit, includii an appeal from an inferior 

wuli . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . s45 

(2) for filing a cross-action, intervention, contempt action, 

or motion for new trial . . . . . . . . . . . . . . . . . . . . . . S15 

(3) for issuing a subpoena, including one copy, when 

requested at the time a suit or action is tiled . . . . . . . . . . . . S4 

(4) for issuing a citation or other writ or process not 

otherwise provided for, including one copy, when 

requested at the time a suit or action is tiled . . . . . $8 

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Honorable John Vance - Page 2 (DM-295) 

(5) for issuing an additional copy of a process not otherwise provided for, when requested at the time a suit 

or action is t&i . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . S4 

(6) for the records management and preservation hmd.. SS. 

You contend that a filing fee may not be charged under section 51.317 for a preindictment habeas corpus proceeding because such a proceeding arises out of an arrest of 

a person suspected of committing a crime and therefore is a miminal proceed@. Your 

argument seems to be premised on the assumption that the statute applies only to civil 

proceed@. Although section 5 1.3 17 does not contain the word civil and merely speaks 

of a “suit” or a “suit or action,” one of its statutory predecessors, article 3927, V.T.C.S. 

(1966), repealed @ Acts 1985, 69th Leg., ch. 480, 5 26(l) at 2048, did provide, until it 

was amended in 1969, that the fees were chargeable in “civil cases.” Compure Acts 1957, 

55th Leg., ch. 433, 3 1, at 1293 (last amended version of article 3927 that refbrred to 

“civil cases”) with Acts 1%9,61st Leg., ch. 667.8 1, at 1970 (amendment to article 3927 

that first omitted “civil cases”). We have found no evidence that the omission of this 

phrase from the 1%9 amendmentr and subsequent amendmentss and the nonsubstantive 

coditication of article 3927 as Government Code section 51.3 173 were intended to change 

the scope of the provision. We therefore agree with you that section 5 1.3 17 applies only 

to a case, that iq a “suit or actioq” of a civil nature. 

We have found no authority, however, for your contention that a habeas corpus 

challenge of a detention under crimimd process is a crimmal pmceedmg.4 We therefore. 

cennot agree with you that a pre.indictment writ of habeas corpus for that reason is not 

subject to the tiling-fee statute. On the other hand, the fact that a habeas corpus 

proceeding is not a uiminal proceed& does not require the conchtsion by default that a 

‘See Sea Comm. on Judiciary, Bii Aoalyd, S.B. 255, 61~1 Leg. (1%9) (no indicat.ion tha! 

cmlkskowsshaendedmchsagescapofsppu~on). 

%ee kts 1979,66tl1 Leg., ch. 295, 8 1, at 661 (amendiq dck 39217, no don of “civil 

eases”); AC& 1977,6Stb +cg., ch. 219,g 1, at 608 (same). 

%ee Aas 1985,691b Leg., ch. 480, $j 1, at 1983 (m article 3927 as sections 51.317 awJ 

51.318 OcCkemaat Chk), # 27, al 2049 (M subsmhe change intended). 

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Honorable John Vance - Page 3 (DM-295) 

such a procding is a civil “suit or action” within the scope of section 5 1.3 17. We must 

consider further the k.gislative intent of section 51.3 17 to de&mine whether that 

provision applies to habeas corpus. See Calvefi v. Texas Pipe Line Co., 5 17 S.W.2d 777, 

781 (Tex. 1974) (“The lklamental and dominant rule controlling the construction of a 

statute is to ascumin if possible the intention of the Legislature expressed therein”). 

The language of section 51.317, even with the interpolation of the prior statutory 

refbrence to “civil cases,” is an indeterminate expression of legislative intention regarding 

your question. The words adim,’ case,6 civil,~ and sui% are subject to varying 

Qlhckk Law Dictianaly tkflres aetton ill palt as follows: 

Tuminitsusudkgalscnse-ahwsuitbmu@inscourt;aformal 

enmpkintwidliathejwkdktionofaanutoflaw....Tllekgalaodfonnsl 

&mandofonckrigbtfmmanotherpxsonorpiutymadcandinsistedmina 

coutofjo6tico. Anotdhwypmcecd@inaanutofjo6ticchywhichone~ 

poscaderarmhcrforlbculfo~orpotedionofaright,tkrtdrcssor 

pmentionofawong,orthc~ofaplblicoffease.... 

. . . 

%ack’s Law Dictionmy &WCS case in part as follows 

A.gcnedtermfortmaaion,couse,6ld~or~, atlaworinequi~ 

~~lpcftre 8 cowt ofjo6tico; PI1 aggqate of f&as whkh 

exeroisofthejmisdkUonofaanutofjustia. A 

judicidpnx&ingfortbedctumhtionofacon~bchzenpartics 

whcreiuriglltsarculforculorprotededor~arcprcvcutiorrcdnssed; 

anypmce&ngjudicialinitsnatwe. 

crhnkslpd rcsuiring~gatiollbypolia.. . 

The word I%ase” my include applications for divoxe, applications for the 

eaablislunent of bighway6, applications for O&IS of suppor( of dative4 arui 

otberspYSalproDEcxEllgslmknowntothccommonlaw. 

Id. at 215. 

?Bhck’s Law Dictionmy defmes civil in part as foknW 

Oforrdatingtothcstatcoritscitizcmy. ReiatingtoprivaterigMsand 

ranedi~ 6ongln by civil actions as conW with criminal pmccedings. 

Id. at 244. 

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Honorable John Vance - Page 4 (DM-295) 

interpretations. For&unately, however, it is unnecessary for us to rely on textual 

interpretatioq for our research of the evolution of the fee statutes for habeas corpus and 

“civil cases” has uncovered clear evidence that section 51.317 does not apply to 

preindictment habeas proceedings. 

An 1897 predecessor to section 51.317 was part of a statute that also contained a 

fee provision expressly applicable to habeas corpus. See Acts 1897,25th Leg., 1st C.S., 

ch. 5, at 5. The statute provided in part as follows: 

Section 1. . . mn all the counties in this State, where there 

shall have been cast at the next preceding presidential ekxtion 3000 

votes or over, the clerks of the district cour& district attorney% 

camty attom sheriffs and constables shall receive from the State 

the following fees and compensation in felony cases, and no more: 

Se-c. 2. The clerks of the district court shall receive for each 

felony case tried in such court by jury, whether the defendant be 

convicted or acquitted, the sum of $8. For each tmnscript on appeal 

or change of venue, 8 cents for each 100 words. For each felony 

case finally disposed of without ti or dismissed or noUe prosequi 

entered, S8. . . For enteringjud~ent in habeas corpus cuses, 80 

amts; and for taking down testimony and preparing zMnscr@t in 

habeas cmpus cases, 8 cents for each 100 work; but the fees in 

habern cotpus cases shall, in no exent, exceed S8 in mry one case. 

Sec. 3. The district or county attorneys shall receive the 

foUowing fees: 

. . . 

3. For representing the State in each case of habeas cops 

where the defeendanr is chmged with felony, the sum of $16. 

. . 

‘Bhck’s Law Dictionary def~ncs suit in part as follows: 

A generic term, ofannprchensive sl@tication, tefening to my proceeding 

byooepasonorpeMnsagaiananotberorothersins~oflawinwbich 

theplaincitrplrsueqinsuchcauftheremcdywhichfbcLaw~o~himfortbc 

ledEm of an icjmy or the enfo roxnentofati&t,whetheratlaworin 

eqoity. It is,,howzver, seldom applied to a criminal prosedion. AIKI it was 

fomdy sondmus trstricted to the &&nation of a proceeding in equity, to 

dishgoish aoch proceed@ from an action at law. 

Id. at 1434. 

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Honorable John Vance - Page 5 (DM-295) 

Sec. 7. That in those wtmties where there shall have been cast 

at the next preceding presidential election less than 3000 votes the 

clerk of the district courts, district attorneys, county attorneys, 

sheri@ and wnstables shall receive 6om the State the fees and 

wmpensation in felony cases allowed under now existing laws, and 

are not inknded to be at&&d by the provisions of sections 1,2, 3, 

4,5and6ofthisact. 

. . 

Sec. 22. The clerks of the district court shall receive for the 

following services the following fees: 

For wpy of petition, including cert&xte and seal, each 100 

words, 15 cents; provided, whenever in any suit a certified wpy of 

any petition or any other instrument is necessary in the district or 

wtmty court, it shall be lati for the p&ntjfl or defeendonr to 

prepare such true and correct copy thereof, and to submit the same 

to the clerk of the district or county court, as the case may be, whose 

duty it shall be to compare the same with the original instrument, and 

if found to be correct he shall attach his cut&ate of true copy; for 

such service he. shall receive 50 cents for each certificate and seal, 

and in addition thereto the sum of 10 cents per page, 700 words to 

the- page, for each page of said copy. Each tit of citation, 75 cents; 

each wpy of writ of citation, 25 cents; !iUng of each paper, 10 cents; 

entering appeanmce of each party to suit, to be charged but once, 5 

cents; each fiMI jua@ent or akcree, 75 cents; ewry other or&r. 

jtuigment or &cree, not exceeding 200 words, 25 cents; where the 

order, jua@nent or decree, whether final or not, exceeak 200 won& 

the aaWional fee for each 100 wor& in excess of 200 work shall 

be 10 cents: making out and transmitting the records and 

proceect‘nlgs in a cause to an inferiw court, fw each 100 worak. IS 

cents; making transcript of the recor& and pqoers in rmy cause 

upon appeal or wrtt of error, with cert@ate and seal, each 100 

worak,lOcents.... 

Id $6 1 - 2,22 (emphasis added), 5 2 repealed by Acts 1985, 69th Leg., ch. 269, § 5(2) 

at 1307,s 22 repealed by Acts 1901,27th Leg., ch. 21, 5 4, at 25. Section 2 of the 1897 

statute thus regulated fees in felony prosecutions and habeas proceedings, and section 22 

of the same statute generally regulated fees in “suit[s]” between “plaintifls]” and 

“defendant[s].” 

Comparison of the above-quoted sections 2 and 22 makes it obvious that the 

legislature did not intend for the language of the latter section to apply to habeas corpus 

proceedings, at least where the applicant is being detained under felony or misdemeanor 

p. 1572 
Honorable John Vance - Page 6 (DM-295) 

charges.9 Section 2 expressly provided for fees for entry of judgment (80 cents) and 

preparation of testimony and transcript (eight cents per 100 words) in habeas proceedings, 

so the similar language in section 22 (75 cents for the tlrst 200 words of the judgment and 

10 cents per 100 words of transcript on appeal or writ of error) wuld not also apply. The 

placement of the specific language regulating habeas corpus fees in the same statute with a 

separate general section regulating civil fees that does not mention habeas corpus indicates 

a deliberate omission to include habeas corpus within the application of the general 

section. 

The subsequent evolution of the provisions in sections 2 and 22 is devoid of any 

evidence of a broadening of the general civil fee schedule to include habeas wrpus. Jn 

1901 the general fee provisions in section 22 were repealed, Acts 1901,27th Leg., ch. 21, 

5 4, at 25, and were replaced by a district clerk fee schedule that was expressly applicable 

to “civil w* id 8 1. There is no suggestion in the 1901 statute that the scope of the 

general fee provisions had be-en broadened to include habeas corpus proceediis. The 

1901 fee schedule eventually was codified as article 3927 of the Revised Civil Statutes of 

1925, see V.T.C.S. art. 3927 (1966), and then was repealed and nxodified as Government 

Code section 51.317, see Acts 1985, 69th Leg., ch. 480, sec. 1, 0 51.317, at 1983, sec. 

26(l) at 2048. Neither the codiication of the fee schedule as article 3927 nor the 

subsequent amendments to the articlelo even intimate that the scope of the fee schedule 

had been broadened to include habeas corpus prq. 

Meattwhile, the habeas wrpus fee language of section 2 eventually was codi6ed in 

article 1026 of the Code of Criminal Procedure of 1925, see Code Grim. Proc. art. 1026 

(1979), where it remained, see Acts 1965, 59th Leg., ch. 722, 5 1, art. 54.02, at 563 

(saving article 1026 from repeal when 1%5 Code of Criminal Procedure was enacted), 

until it was repealed in 1985, see Acts 1985, 69th Leg., ch. 269, $5(2) at 1307. Article 

1026 retained language similar to that in section 2 of the 1897 statute, establishing fees for 

entering judgment and preparing transcript “in habeas corpus cases.” These fees, unliie 

9Fbclanguageoft~tion2ofthe1897staMemightkams&eed aSlhiUllgdkUiOtCb3Ik 

hsbcasfc9todctentionsuodafclonychargcsksauscsdionl~tbeaaMcrderrcdtofcg’infclony 

casa”and~~3Limitcddipvictand~~fasinhabcar~onlytotbwc’wbcrr 

tlte&kndantischargedwithfelony.” Caselawd&qmwesmchaSoqhowever. ktion2of 

tbc1897sratute~wascodifiedinarticle1026oftbccodeofCriminal Prowdam (1979). which 

cootiMdtoprovidcfMf~fOrenteri~judgmcntandprrparingtranscriptinhabeasWrplsproceedingS 

until it was repealed in 1985. See Acts 1%5,69th Leg., ch. 269, 5 5(2) at 1307 (repealer ofarticle 1026). 

TheTacaSCOtMliSSi on of Appeals held in 1935 that the district clerk was entitled to these fees under 

article 1026 regardless of whether the applicant had been charged with a felony or merely a misdemeanor. 

McCormick v. Sheppard, 86 S.W.2d 213, 215 flex. 1935). The 1897 statute, then, authori& district 

clerk fees under section 2 for habeas corpus proceedings arising from detentions under felony or 

misdemwaor charges, hot did not authorize any fees for habeas proceedings under section 22. 

Wee Acts 1941,47th Leg., ch. 387, 8 1, at 641; Acts 1945,49th Leg., ch. 368, 5 3, at 662; Acts 

1957,55tb Leg., ch. 433,s 1, at 1293; Acts 1%9,61st Leg., ch. 661.5 1, at 1970; AcJs 1971,65th Leg., 

eh. 219, 8 1, at 608; Acts 1979,66th Leg., ch. 295, 8 1, at 667. 

p. 1573 
Honorable John Vance - Page 7 (DC295) 

those provided in the general district clerk fee schedule, were initially paid not by the 

applicant/defendant but rather by the State; and the applicant/defendant was charged with 

the fees only upon conviction. See Code Crim. Proc. art. 1018 (1979); see also Code 

Crim. Pm. tit. 2 revisofs note at 262-63 (Supp. 1994) (explaining that article 1018 was 

impliedly repled by V.T.C.S. article 391%). 

Thu$ until 1985 the provisions for fees in habeas wrpus cases remaiwd 

segregated ffom the general civil fee schedule. In that year the general fee schedule in 

V.T.C.S. article 3927 was rewditied as sections 51.317 and 51.318 of the Government 

Code, see Acts 1985,69th Leg., ch. 480, 4 1, at 1983. with the expre-ss provision that no 

substantive change was intended, ia! 5 27, at 2049. The substance of article 1026 of the. 

Code of Criminal Procedure (repealed 1985) was omitted from the nonsubstantive 1985 

codification of title 2 of the Code of Criminal Procedure because V.T.C.S. article 3912e 

prohibits payment of fees by the State or a wunty to any salaried district or county officer. 

See Code Grim. Proc. tit 2 foreword at 228 & revisor’s note at 265 (Supp. 1994). Article 

XVI, section 61, of the wnstitution requires district clerks, as “district officers,” to be 

wmpensated on a saJary basis. 

Jn sum, section 5 1.3 17 derives from an 1897 general fee. section that did not apply 

to the habeas corpus proceeding because the 1897 statute also contained a separate 

section that spec&aUy re&ted habeas proceedings. There is no evidence in any 

intermediate predecessor statute of an intention to broaden the general civil fee schedule 

to include habeas corpus. Rathex, the habeas fee provisions were kept segregated in 

article 1026 of the Code of Criminal Procedure until that article was repealed in 1985, the 

SME year in which section 5 1.3 17 was enacted as a nonsubstantive revision of the district 

clerk fee schedule. We therefore conclude that section 51.3 17 does note apply to a 

preindictment habeas proceed& 

You also ask whether, if section 51.317 is inapplicable to a preindictment habeas 

proceeding, a district clerk mi&t charge a fee for sexvices rendered in the prowedmg 

pumuant to section 51.319 of the Government Code. Section 51.319 provides, in 

pertinentpart: 

The district clerk shall wllect the fouowing fees for services 

performed by the clerk: 

. . 

(5) for performing any other service prescribed or authorized by 

law for which no fee is se-t by law, a reasonable fee. 

Because no other law sets a fee for the district clerk’s services in a habeas corpus 

proceed@, this provision authorizes the district clerk to charge a “reasonable” filing fee in 

p. 1574 
Honorable John Vance - Page 8 (DM-295) 

such a proceed@tt Cj Attorney General Opiion H-453 (1974) (statutory predecessor 

of section 5 1.3 19 authorizes reasonable district clerk fees in wndemnation proceed&s). 

Although what wnstittttes a “reasonable fee” is a fact question and theregore is 

beyond the scope of an attorney general opinion, we believe that a habeas wrptts fee that 

exceeds the fee charged in civil cases in district court would be unreasonable as a matter 

of law. CY Attorney General Opiion DM-26 (1991) at 3 (m district-court wndetnnation 

m=@w maximum fee that will be- deemed reasonable is same as fee statutorily 

provided for county clerks in wndentnation proceed@). Thus, a “reasonable fee” for 

filing the application for habeas corpus may be less than but may not exceed S45, see 

Goti Code 8 51.3 17(b)(l); and a “reasonable fee” for i.Winceofthewtitmaybeless 

than but may not exceed $8, id. 8 51.3 17@)(4). The fees for Sling the application and 

issuing the writ are chargeable when the application is filed and issuance of the writ is 

requested. Id. 5 51.317(a). 

Thefactthatrruchfeesaredueuponfilingandrequestforissuancedoesnotmean, 

however, that the clerk may rehe to issue the writ or any other process in a 

preindicttnent habeas corpus procexUng for the reason that the fees have nor been paid. 

Although Texas Rule of Civil Procedure 142 requires payment of fees or the Sling of a 

paupefs afEdavit before the clerk may issue process, that rule applies only to a “suik” see 

Tex. R Cii. P. 125. 127, 131. 137-38, or a “civil” matter, see Tex. R Civ. P. 126, 128. 

For the following reasons we believe. that the writ of habeas wrpus is not a kind of “suit” 

or “civil” matter that the Texas Supreme Court intended to in&de under rule 142. 

Bhck’s Law Dictionary defines habeas WPUS in part as follows: 

Lat. (You have the body.) The name given to a variety of 

wits (of which these were anciently the emphatic words), 

having for their object to bring a party before a wutt or judge. 

In wmtnon usage, and whenever these words are used alone, 

they are usually understood to mean the habeas corpus ad 

subjiciendum (see inza). The primary li.mction of the writ is 

to release from ttnlawgtl itnptisonment. . The office of the 

writ is not to de&tmine prisoner’s guilt or innocence, and only 

issue which it presents is whether prisoner is re&ained of his 

liberty by due process. 

A form of wllateral attack. An independent proceed& 

instituted to de&mtine whether a defendant is beiig ttnlawMy 

p. 1575 
Honorable John Vance - Page 9 (DM-295) 

deprived of his or her liberty. It is not an appropriate proceed@ 

for appeal-like review of discretionq decisions of a lower 

wutt. 

. . . 

Eabcas corpus ad subjicieodum . . . . A writ directed to the 

person detaining another, and commanding him to produce the 

body of the prisoner, or person detained. This is the most 

common form of habeas wrpus tit, the purpose of which is to 

test the legality of the detention or imprisonment; not whether he 

is guilty or innocent. This tit is guaranteed by U.S. Const. Art. 

I~9,andbystatewnstitutions.... 

This is the well-known remedy in England and the United 

States for deliverance from illegal wn6nement, called by Sii 

William Blackstone the most celebrated writ in the English law, 

and the great and e&acious writ in all manner of illegal 

wnhtnent. . . The “great writ of liberty,” issuing at wmmon 

law out of courts of Chancery, King’s Bench, Common Pleas, 

and Exchequer. 

BLACK’S LAW DICTIONARY 709-10. Habeas cops ad subjiciendum thus is .a 

“proceeding” for a “tit,” the purpose of which is a narrow one: to test the legality of a 

detention or imprisonment. It is intended to be “efficacious.“*z 

Article 11.01 of the Code of Criminal Procedure defines habeas corpus similarly, 

as foUows: 

The writ of habeas corpus is the remedy to be used when any 

person is restmined in his liberty. It is an order issued by a wurt or 

judge of wmpetent jurisdiction, directed to any one having a person 

in his custody, or under his restmint, commanding him to produce 

such person, at a time and place named in the writ, and show why he 

is held in custody or under restmint. 

Article 11 .Ol and the foregoing Block’s definitions thus speak of habeas corpus in 

tetms of Wit, ” “remedy,” and “order” but do not call it a “suit” or an “a&ion.” In fact, 

there is no wnsensus on whether habeas corpus is a “suit” or an “action”: 

Strictly speaking habeas corpus is not an action or a suit, but is a 

summary remedy open to the person detained. However, in some 

cases, or for some purposes, it is held to be an action or suit. Thus, 

t2Article11.@40ftheCodeofCriminalRoadure provides: Tvuy provision relating to the writ 

~habcaPcorprrsbatlbcmostfaMlablyconshuedinordertogivc~tothcremdy,aadpmtcctthc 

rightsoftbepersonsc&ingreliefundexit.” 

p. 1576 
Honorable John Vance - Page 10 (DM-295) 

the proceedings in habeas corpus have been considered in the nature 

of an action so as to entitle persons to costs under a statute providing 

for costs in an action, although it is otherwise under other statutes. 

ln some jurisdictions it is classed as a special proceeding; in others it 

is not considered as a special proceedii. 

39 C.J.S. Habeas Caps 5 3, at 462 (1976) (footnotes omitted). 

The sister high courts of this state have issued decisions ihustmting the lack of 

wnsensus on whether habeas corpus is a “suit.” An example of a case conchtding that 

habeas wrpus is not a “suit” is Ecparfe Ramzy, 424 S.W.2d 220 (Ten. 1%8). There the 

Texas Supreme Court stated that a habeas proceeding for relief f?om imprisomnent for 

contempt is not “a suit or controversy between private parties” snd held that the party 

adverse to the habeas applicant in an underlying civil proceeding out of which the alleged 

wntempt arose was not entitled to notice of the hearing on the merits of the habeas 

application. Id. at 223. The court explained its holding as follows: 

The writ of habeas corpus is designed for the purpose of giving a 

speedy remedy to one who is unlawhdly detained. The very nature 

of a procedure by writ of habeas corpus dictates that it would be 

inwnsistent to recognize on the one hand that the purpose of the writ 

is to obtain a speedy adjudication of a person’s right to be f?ee from 

illegal restraint, and on the other hand to compel the person to await 

service of notice of the proceed@ upon some private party before 

the judge an proceed with the investigation. 

Id.13 The Texas Court of Crimimd Appeals took the contrary position on the “suit”-or- 

“not a suit” question in Erparre Brow&r, 373 S.W.2d 256 (1%3), and Curry v. Ater, 648 

S.W.Zd 10 (1983), owmded on other grounds by Collier v. Poe, 732 S.W.2d 332, 344 

(Tex. Crim. App. 1987). In these cases the court, without stating its reasoning, held that a 

habeas corpus proceed@ is a “suit” for purposes of V.T.C.S. article 2168a (repealed by 

Acts 1985, 69th Leg., ch. 959, 8 9(l), at 3322), a statute requiring a court, “in all suits, 

either civil or crimb@” to grant a continuance where a party or attorney is a member of 

legislature. See Curry, 648 S.W.2d at 12; Browder, 373 S.W.2d at 257. (We note that in 

both Curry and Brow&r, the person seeking a legislative continuance was one of the 

attorneys for the habeas applicant; therefore, the applicant waived any entitlement to 

speedy reliefunder the writ.) 

“See also Ex pde Tail, 14 N.W.Zd 840, 841 (Ncb. 1944) @abeas corpus is special civil 

~pmvidingaunmaryrrmedytodetaincdpcrsonsandisnot~~~lyadnrraryinchersctn 

or “a suit lehwco the applicant and the oftkcr [dctsioing him]“); Florid0 n rd. Lkb v. Fabisimki, 152 

So. 207, 209 @la. 1933) @abeas corpus is not action or suit but summay remedy); New York .zx r-z/. 

IfmcpbnaM Y. Hmley, 274 N.Y.S. 813, 815 (Sop. Ct. 1934) (habeas cqw is summary pmceediaa), 

ofld, New York cx ml. Hauptmmn Y. Ha&y. 274 N.Y.S. 824 (App. Div. 1934); Red/ield Y. his, 176 

N.W. 512 (S.D. 1920) (habeas cmpw is not civil action). 

p. 1577 
Honorable John Vance - Page 11 W-f-295) 

Not only is there no wnsensus on whether habeas wrpus is a “suit” or “action,” 

but also tbe courts have struggled with the wrrectness vef tron of describii the 

pwcwding as “civil.” The wurts sometimes have wnsidcrcd habeas wrpus proceed& 

to be civil in nature, see Evparre Tong, 108 U.S. 556, 560 (1883); Exparte Morris, 349 

S.W.Zd 99, 100-01 (Tax. 1961); Harbison v. McMurqv, 158 S.W.Zd 284, 287 (Tex. 

1942), and sometimes have considered them to be neither civil nor wiminal but rather sui 

getwis, see In re May Chee Kee, 33 F. 377,379 (C.C.N.D. Cal. 1887), or an exercise of 

special wnstitutional and statutory jurisdiction, see McFar&md v. Johnson, 27 Tax. 105, 

109 (1863); Corm v. Schilling, 576 S.W.Zd 147, 151 (Tan. Cii. App.-Corpus Christi 

1978, no writ). 

Still other cases indicate a rewgnition of the Mlity of mechanicalty iabehng 

habeas corpus as a means of determining the appropriateness of applying a particular rule 

to the proweding and instead focus concern on the e&ctiveness of the writ itself Thus, 

in Smith v. Bennett, 365 U.S. 708 (1961), the Supreme Court held that a state requirement 

that all prisoners pay a tiling fee in order to chaknge a detention by habeas corpus, 

thereby making, the tit mtwtilable to the state’s indigent prisoners, denied those 

prisoners equal protection of the laws. Id. at 713-14. The Court found the civil label of 

habeas pmcwdings not to be controlling in this wntextr~ and declined to reach the state’s 

argument that if habeas corpus, a civil remedy, must be made available to indigents, then 

Weshallnolquibblesstowhcthcrkthis~itIhPbcescnplslkcsllcda 

Eivilolcrimjllplsdi~f~,gsseldcllbassaiQ1k”tbchigbedremedyinkw, 

for my man that is inykned.’ 3 HoweII’s State Trials 95 (1628). The 

availMityofapxccedmtoregiinlibextylolttkuaghcrimi&pmcesscaawt 

bemwJecontingcntoponaehoiecofl&els. EversincetheMagoaChta,man’s 

gEdOSt~ght-pasonallibaty-haskenguaraatad,andtkproctdurcsOfthC 

HabeasCmpasActof1679gavetomryEaglkhamapromptaod~ 

maedyfortestiagtkkgalityofhisimprisonment. GmidemtbytheFcmders 

utbchiBbcasafcguard~libcrty,itwarwrittcninGothcConstitutiondtbe 

UnitrdStatcsthatits”privilcgc***~lmtksuspcaded,unlearwbmk 

CassofRchelkmorIavasknthepublicSafdymayrcqoirc~’ Art.I#9. Its 

pZiOCiplCiSimbcddcdiOthCfuodamcntal kwof47ofourStates. 1thasloag 

~sMilsblektheftdnalcourutoiodigcntprisonrrsotbothtbestakand 

FederalGovemmntstotestthewdidityoftheirdeteation. Overthecentarksit 

has hoen the. camnon law world’s “freedom tit” by whose orderly processes the 

~onofaprjsonerincourtmaykreguirrdandthelegalityofthegrwndr 

for his incmcemtion inquired into, failing which the prisoaer is set free. We 

repeatwhathasbeensotndysaidofthefe&alwrit: “thereisnohigherduty 

ho to maintain it uaimpaiw Bowen Y. Johastoa, 1939, 306 U.S. 19, 25, 59 

S.a442,446,83L,Ed,455,andunsurpcndcQsavconlyinthccaccsspecified 

in OUT Cmstitotion. When an eqdvalent right is granted by a State, ~nancial 

bwdies must not be permitted to condition its exemise. 

,365 U.S. at 712-13 (emphasis add@ fmtmxe omitted). 

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Honorable John Vance - Page 12 (DM-295) 

the protection of all civil rights must he made available thee of charge to the poor. Id. at 

712-13. 

Likewise, in Hark v. Nelson, 394 U.S. 286 (1%9), the Court was critical of the 

“civil” label of habeas proceedmgs. There the Court held that the Federal Rules of Civil 

procedure mguking discovery “do not apply [to habeas proceedings] completely and 

automaticdly by virtue of Rule 81(a)(2), “15 id at 298, and that the federal courts may 

fashion appropriate rules for discovery in such proceedings “by analogy to existing rules or 

othemise in wnformity with judicial usage,” id. at 299. The majority called the “civil” 

label of a habeas wrpus proceeding “gross and inexact,” id. at 293~94,16 and resisted an 

automatic literal application of the civil discovery rules to such a proceed@ because the 

delay caused by some of the elaborate discovery procedures would “do violence to the 

et&ient and effective administration of the Great Writ,” id. at 297. 

The Texas courts also at times have focused on the practical wncern of whether a 

particular pnxeduml rule will wnflict with the e&ctiveness of the writ rather than 

whetha the writ 6ts sem~tically within the language of the rule. For example, the Texas 

Supreme Court in Arendf v. Carter, 210 S.W.2d 976 (1948), explained the apparent 

wntlict between A4cFarkmd v. J&, 27 Tar. 105 (holding that respondent may not 

appeal), and Harbhwn v. McMurrq, 158 S.W.2d 284 (holding that applicant may appeal), 

as follows: 

The purpose of the writ of habeas corpus is to obtain a speedy 

adjudication of a person’s right to liberation from illegal restraint, 

except in the child custody cases. In the light of this purpose there is 

no inconsistency in permitting an appeal by a relator where there is a 

rehal of discharge, and denying an appeal by the respondent where 

the discharge is granted. The former is wnsistent with the purpose 

of the writ of habeas corpus, while the latter is in wnflict 4th such 

Purpose. 

1ti6,of-,tNcthathaheaseorposproccedingsarcch3racterizedas 

“civil.” SW, e.g., Fish v. Baker, 203 U.S. 174, 181, 27 S. Ct. 135, 51 L.Ed. 

142 (1906). But the label is gross and inexact [Footnote titted.] Essentially, 

tbepmceanagisuaique. Habesscerpuspracticetnthefedclal~has 

eonformcdwitheiviIpmctieeonlyinageneraIsnst. 

Hami>, 394 U.S. at 293-94. In the omitted footnote the Court cited adlmiti~ for “[tlhe deSree to wbicb 

this paid) charadcrization exodvely simpliks a complex history.” Id. at 294 n.4. 

p. 1579 
Honorable John Vance - Page 13 (DM-295) 

Arendt, 210 S.W.2d at 977 (emphasis added); see Stare v. Paitersan, 668 S.W.Zd 462, 

463 (Tex. App.-Corpus Christi 19&4, no writ) (per auiam) (“regardless of whether the 

[habeas corpus] proceeding is civil or &minal,” State may not appeal from order releasing 

on writ of habeas corpus applicant who was wmmitted as delinquent child). 

After considering the foregoing authorities, we are of the opinion that a court, in 

determining whether Texas Rule of Civil Procedure 142 applies to a preindictment habeas 

corpus proceeding, would conclude that the controlling wnsideration is not whether 

preindictment habeas is a “suit” or whether the proceeding is better categorized as “civil” 

or “not civil” but rather whether application of the rule would thwart the speed and 

e5caciousness of the proc&ing. The denial of relief from unlawful imprisonment on the 

basisofeven momeataryinabilitytopayafilingfeewouldconflictwiththepurposeof 

habeas corpus and the central importance of personal freedom in the United States and the 

State of Texas. The e&ctiveness of habeas corpus would be compromised if rule 142 

were wnstrued as applying to the writ. We therefore conclude that rule 142 does not 

apply to a preindictment habeas proceeding.r7 

SUMMARY 

The district clerk tiling fees provided for in section 5 1.3 17 of the 

Government Code do not apply to the Sling of an application for a 

preindictment writ of habeas corpus, but a district clerk may charge a 

“reasonable” 6ling fa for services rendered in a habeas wrpus 

proceeding pursuant to section 51.319 of the Government Code. 

The clerk may not refuse to issue the writ for nonpayment of such a 

fee, however, because Texas Rule of Civil Procedure 142 does not 

apply to a preindictment habeas proceeding. 

DAN MORALES 

Attorney General of Texas 

‘7Normaya~orconrtaberrfusetoservctbewritmerrly~~tbcsrviccfteharaot 

hccn psld io sdvmce. The skiff, see Local Gov’t code 5 85.021, or the umstable, we id. 8 86.021, 

Merritt v. Hmis County, 775 S.W.Zd 17, 23 (Tea. App.-Hcuston [14th Dist.] 1989, tit denied), 

gcmmlly most execute all process directed to him or her hy legal authority. Texas Rule of Cii 

FVec&ue 126 provides that a sheriff or amstable “shall [not] be mmpelled to execute any p- in civil 

cPscscomingfromatlycountyotberthantbconeinwhichbcisanofficn,unlessthefeesallowedhimby 

lawfortbcscrviceofsuchp-shallbepaidinadvance;cxccptwhenaffidaviisfileQasprovidedby 

lawortksemka.” ThisnrlShowcvcr,expresslyrrfeato”civilcases”withoutspecifyinghabeaswrpls 

m. Bcfausethiglulewouldcompromisctbecffeaivmescofthcwritifitwereconstruedac 

ppplyingtotbcwrit,wcklicvctbatitdoesmcapplytoahabeasm~pmc&ding. 

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Honorable John Vance - Page 14 (DM-295) 

JORGE VEGA 

FiiAssiamtAttomeyoeneral 

DREWDURHAM 

Deputy Attorney General for Criminal Justice 

WILL PRYOR 

specialcd 

RENEAHIcKs 

State Solicitor 

SARAH J. SHIRLEY 

Chair, Opiion Committee 

PrepadbyJamesB.Pinson 

Assistant Attomeyoeneral 

p. 1581